State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1024

State of Minnesota,
Respondent,

vs.

Arthur Rafie Mullins,
Appellant.

Filed April 25, 2022
Reversed and remanded
Slieter, Judge

Stearns County District Court
File No. 73-CR-14-10924

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, Mi chael J. Lieberg, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, An drew J. Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Segal, Chie f Judge; Slieter, Judge; and Rodenberg,
Judge.


 Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant challenges his 360- month executed prison sentence for first-degree
criminal sexual conduct, arguing that the sentence was calculated with an incorrect
criminal-history score. Because appellant ’s criminal-history score was calculated
incorrectly, we reverse and remand.
FACTS
Appellant Arthur Rafie Mullins was charged with one count of first-degree and two
counts of second-degree crim inal sexual conduct. Based on a plea agreement, Mullins
pleaded guilty to first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342,
subd. 1(a) (2008), and the remaining charges were dismissed.
During the plea hearing, Mullins’s counsel and respondent State of Minnesota
outlined the terms of the plea agreement:
MULLINS’S TRIAL COUNSEL: We’ve got an agreement.
[Mullins] is going to plead guilty to first-degree crim sex. The
other charges dismissed. 360 mont hs stayed. 60 days in jail.
Psychosexual evaluation, and he has to register.

Is that correct?

THE STATE: It is. . . . [We] also discussed that [Mullins]
needs to be ordered to coope rate with the presentence
investigation, all previously-ordered conditions of release, and
appear for the sentencing hearing.

If he fails to do any of this, th e plea would stick and the State
could argue up to the full 360 months.

3
Before accepting Mullins’s guilty pl ea and entering a conviction, the district court asked
Mullins:
THE COURT: [D]o you understand that you need to cooperate
with the presentence investigation process, comply with all of
the previously-set release conditions and return for sentencing?

MULLINS: Yes.

THE COURT: Do you further understand that if you fail to do
any of those things, you could no t withdraw your guilty plea,
but the State would not be b ound by the plea agreement and
could ask that your sentence be executed?

MULLINS: Yes.

Mullins absconded and failed to appear at the scheduled sentencing hearing. He
was apprehended over one year later.
Mullins then moved to withdraw his guilty plea. During the sentencing hearing, the
district court denied Mullins’s motion and sentenced him to 360 months in prison based on
a severity-level A offense and a criminal-his tory score of 8 point s, which included one
custody-status point. Mullins directly appealed from his judgment of conviction. Our court
affirmed his conviction but remanded for resentencing to allow the state to offer evidence
of Mullins’s criminal-history sc ore, specifically, his custody status at the time of the
offense. State v. Mullins, No. A19-1620, 2020 WL 5107289, at *4 (Minn. App. Aug. 31,
2020), rev. denied (Minn. Nov. 25, 2020).
During the resentencing hearing, the parties agreed that the original criminal-history
score of 8 points was an error. Instead, Mullins’s criminal-histo ry score, before
considering a custody-status point, was 5. Th e parties disagreed, however, as to whether
4
one custody-status point should be added to reac h a total criminal history score of 6. A
criminal-history score of 5 results in a presumptive guidelines sentence range of 261 to 360
months and a presumptive sentence of 306 months. 1 Minn. Sent. Guidelines IV. (2008).
A criminal-history score of 6 results in a 306 to 360 mo nths sentence range, with a
presumptive sentence of 360 months. Id.
Mullins argued that the one custody-status point should not apply because he only
admitted to committing the offense during a date range, identified in the complaint, of
January 1, 2009, through March 1, 2013. Because no specific date of offense was
identified, Mullins argued, the state could provide no eviden ce showing that he was on
supervision at the time of the offense. The state responded that th e custody-status point
applied because Mullins was on supervision at times during part of the offense-date range
from November 2008 until March 2010, and at certain times during 2012.
The district court agreed with the stat e and assigned one custody-status point,
explaining:
As a matter of law, I think the date range does allow the
custody point to be applied in th is particular case. As I read
the guidelines here, and I’m look ing at the 2008 guidelines, it
states that one point is assi gned if the offender commits the
current offense within the peri od of the initial probationary
sentence for that. There’s a date range to the offense, and that

1 The presumptive sentence consists of a recommended fixed duration surrounded by a
range of lengths “15 percent lo wer and 20 percent higher than the fixed duration,” all of
which are presumed acceptable. Minn. Sent. Guidelines II.I. (2008); see also Minn. Stat.
§ 244.09, subd. 5(2) (2008) (“The guidelines sh all provide for an increase of 20 percent
and a decrease of 15 percent in the presumptive, fixed sentence.”). However, because the
maximum prison sentence for a first-degree criminal-sexual-conduct conviction is 360
months, the maximum sentence for a criminal-history score of five or six are both capped
at 360 months. See Minn. Stat. § 609.342, subd. 2(a) (2008).
5
I don’t think exact specificity is required and that certainly by
clear and convincing evidence based on his own admissions
that the custody point should apply, but -- so I think that the
score should be [6].

The district court also found that the one custody-status point would not change
Mullins’s sentence because:
the entire analysis really comes down to the plea agreement.
The plea agreement, if you actually look at the plea petition, if
you actually look at the actual transcript, it just says 360
months, which is a sentence th at was authorized whether you
looked at a score of 6 or a 5 for that.

. . . .

Today is a very narrow issue about criminal history score, and
either if it’s a [6] or a [5] the same result occurs, the original
sentence stands.

The district court resentenced Mullins to an executed 360-m onth imprisonment.
Mullins appeals.
DECISION
The parties agree that the district court erred by including one custody-status point
in his criminal-history score. Even when parties agree that the district court erred, appellate
courts independently review the legal issue. See State v. Hannuksela , 452 N.W.2d 668,
673-74 n.7 (Minn. 1990). We review a district court’s determination of a defendant’s
criminal history and sentence for an abuse of discretion. State v. Maley, 714 N.W.2d 708,
711 (Minn. App. 2006); State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014).
The state must prove a custody-status poi nt applies and must do so by a fair
preponderance of the evidence. Maley, 714 N.W.2d at 711. “Fair preponderance of the
6
evidence means that [a fact] must be established by a greater weight of the evidence.” Id.
at 712 (quoting State v. Wahlberg, 296 N.W.2d 408, 418 (Minn. 1980)). “It must be of a
greater or more convincing effe ct and lead you to believe th at it is more likely that the
claim is true than not true.” Id. at 712 (quotation omitted). When reasonable doubt exists
as to when a defendant’s criminal act occu rred, the issue should be resolved in the
defendant’s favor. State v. Goldenstein, 505 N.W.2d 332, 347-48 (Minn. App. 1993), rev.
denied (Minn. Oct. 19, 1993).
The Minnesota Sentencing Gu idelines provide that an offender is assigned one
custody-status point if the offender “was on probation, parole, supervised release,
conditional release, or confined in a jail.” Minn. Sent. Guid elines II.B.2.a (2008). “The
basic rule assigns offenders one point if they were under some form of criminal justice
custody when the offense was committed.” Minn. Sent. Guidelines cmt. II.B.201 (2008).
Mullins, when providing a factual basis for his guilty plea, admitted that he
committed the offense sometime during the date range described in the complaint of
January 1, 2009, through March 1, 2013. Critically, Mullins did not admit to committing
the offense on a specific date.
Because the state failed to prove by a fa ir preponderance of the evidence that
Mullins “was on probation, parole, supervised release, conditional release, or confined in
a jail” on the date when the offense occurred, the district court abused its discretion by
assigning one custody-status point to Mullins when calculating his criminal-history score.
Maley, 714 N.W.2d at 711.
7
A district court “must use accurate criminal history scores in order to set mandatory
presumptive sentences that comply with the Mi nnesota Sentencing Guidelines.” State v.
Maurstad, 733 N.W.2d 141, 142 (Minn. 2007). Thus, “any sentence based on an incorrect
criminal history score is an illegal sentence.” State v. Provost, 901 N.W.2d 199, 201 (Minn.
App. 2017) (quotation omitted).
The state argues that we need not remand this case. We disagree. Our court in
Provost explained,
the sentencing guidelines serve as the anchor for a district
court’s discretion at sentenci ng, when a guidelines range
moves up or down, offenders’ sentences tend to move with it.
Given the great discretion vested in the district court in
sentencing matters, we recognize that not every defendant who
receives a sentence at the top or bottom end of the presumptive
range when sentenced with an incorrect criminal history score
need necessarily receive a simila rly situated sentence within
the presumptive range when resentenced with a correct
criminal history score. However, when a defendant is
sentenced based on an incorrect criminal history score, a
district court must resentence the defendant.

Id. at 202 (quotation and citation omitted); see also State v. Stewart, 923 N.W.2d 668, 680
(Minn. App. 2019) (reversing and remanding fo r resentencing with instructions to use
correct criminal-history score), rev. denied (Minn. Apr. 16, 2019).
The state also argues that Provost is distinguishable beca use it “was based on an
entirely different procedural posture.” We are not persuaded. Provost clearly directs that,
when a district court imposes a sentence based on an incorrect criminal-history score, the
“district court must resentence the defendant.” Provost, 901 N.W.2d at 202. In order to
comply with the sentencing guidelines, a district court “must use accurate criminal history
8
scores.” Maurstad, 733 N.W.2d at 142. Therefore, we are required to remand the matter
for resentencing.2 Provost, 901 N.W.2d at 202.
Accordingly, we reverse Mullins’s senten ce and remand for re sentencing. The
district court may exercise its discretion to impose a sentence w ithin the range for 5
criminal-history points.
Reversed and remanded.

2 Mullins argues that we should instruct the di strict court to “consider whether [his] new
criminal history score of [5] renders his gu ilty plea unintelligent.” Because Mullins did
not properly raise the argument on appeal, no r did he properly brief the issue, we do not
consider it. State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015) (holding that failure
to make a timely assertion of a right is a forfeiture of that right); Melina v. Chaplin, 327
N.W.2d 19, 20 (Minn. 1982) (holding that issues not briefed on appeal are waived).